United States v. Stain
| Decision Date | 12 July 2017 |
| Docket Number | 2:02-cr-00201-LRH-NJK |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. EDWARD STAIN, Defendant. |
| Court | U.S. District Court — District of Nevada |
Before the court is petitioner Edward Stain's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.1 ECF No. 404. The court finds that both Hobbs Act robbery and federal bank robbery are categorically crimes of violence under the "force clause" under 18 U.S.C. § 924(c). In turn, even if section 924(c)'s "residual clause" is void for vagueness—a question the court does not reach—Stain is not entitled to relief.2 The court will therefore deny his motion but will grant him a certificate of appealability.
On February 3, 2006, a jury found Stain guilty of one count of conspiracy to commit armed bank robbery (count one); two counts of interference with commerce by threats orviolence ("Hobbs Act robbery") (counts two and six); one count of armed bank robbery (count four), and two counts of possession of a firearm during and in relation to a crime of violence under 18 U.S.C. § 924(c) (). ECF No. 217; see also ECF No. 171. On June 13, 2008, the Ninth Circuit Court of Appeals reversed Stain's conviction only as to the count of conspiracy to commit armed bank robbery and affirmed the remainder of the judgment. ECF No. 272. On August 28, 2012, the court granted in part and denied in part Stain's pro se section 2255 motion. ECF Nos. 285, 328. The court subsequently entered the second amended judgment (ECF No. 329), which is the operative judgment in this case.3
Pursuant to this district's Amended General Order on April 27, 2016, Stain filed an "abridged" motion to vacate in order to toll the statute of limitations under section 2255. ECF No. 397. He subsequently filed a timely full motion to vacate, set aside, or correct his sentence. ECF No. 404.
Stain filed his section 2255 motion in the wake of Johnson v. United States, 135 S. Ct. 2551 (2015). There, the U.S. Supreme Court ruled that a portion of the Armed Career Criminal Act's ("ACCA") violent-felony definition, often referred to as the "residual clause," was unconstitutionally vague (i.e., "void for vagueness").4 Johnson, 135 S. Ct. at 2557. The Supreme Court subsequently held that Johnson announced a new substantive rule that applied retroactively to cases on collateral review, Welch v. United States, 136 S. Ct. 1257 (2016), thusallowing defendants to challenge their ACCA convictions under section 2255. See, e.g., United States v. Avery, No. 3:02-CR-113-LRH-VPC, 2017 WL 29667 (D. Nev. Jan. 3, 2017).
Moreover, Johnson also sparked challenges to other federal criminal statutes and sections of the U.S. Sentencing Guidelines ("U.S.S.G.") that incorporate a "crime-of-violence" definition that includes a residual clause similar or identical to the ACCA's. One such case relevant to this motion is Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015), cert. granted, 137 S. Ct. 31 (2016). There, the Ninth Circuit addressed a challenge to the residual clause found in 18 U.S.C. § 16(b), which is similar but not identical to the ACCA's residual clause. Dimaya, 803 F.3d at 1111-12. The court ultimately held that section 16(b)'s clause was also void for vagueness. Id. at 1119.
Last year, the U.S. Supreme Court granted certiorari in Dimaya and heard arguments in early 2017. Lynch v. Dimaya, 137 S. Ct. 31 (2016). However, instead of issuing a decision, the Court set the case for re-argument for its next term.
As the instant motion demonstrates, Johnson and Dimaya have also led to challenges to the residual clause found in 18 U.S.C. § 924(c), which is nearly identical to the section 16(b) residual clause that the Ninth Circuit held void for vagueness in Dimaya. While a challenge to section 924(c) is currently before the Ninth Circuit, the court has deferred ruling on the issue until the Supreme Court decides Dimaya. United States v. Begay, No. 14-10080, ECF No. 87 (9th Cir. 2017); see also United States v. Begay, 2016 WL 1383556 (9th Cir. 2016).
Pursuant to 28 U.S.C. § 2255, a prisoner may move the court to vacate, set aside, or correct a sentence if "the sentence was imposed in violation of the Constitution or laws of the United States, or . . . the court was without jurisdiction to impose such sentence, or . . . the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). "Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto." Id. § 2255(b).
Section 2255 creates a one-year statute of limitations. Id. § 2255(f). When a petitioner seeks relief pursuant to a right recognized by a U.S. Supreme Court decision, the statute of limitations runs from "the date on which the right asserted was initially recognized by the . . . Court, if that right has been . . . made retroactively applicable to cases on collateral review . . . ." Id. § 2255(f)(3). The petitioner bears the burden of demonstrating that his petition is timely and that he is entitled to relief. Ramos-Martinez v. United States, 638 F.3d 315, 325 (1st Cir. 2011).
18 U.S.C. § 924(c)(3). The first clause in this definition is commonly referred to as either the "force clause" or "elements clause," while the second clause is the aforementioned residual clause. Because the definition is worded disjunctively, a felony need only categorically match5 one of the two clauses in order to constitute a crime of violence and thus satisfy that element under section 924(c)(1)(A).
Here, the counts of Hobbs Act robbery and federal armed bank robbery (counts 2 and 4) served as the underlying crimes of violence for Stain's two separate section 924(c) convictions(counts 3 and 5). See ECF No. 171. The Hobbs Act "prohibits any robbery or extortion or attempt or conspiracy to rob or extort that 'in any way or degree obstructs, delays or affects commerce or the movement of any article or commodity in commerce.'" United States v. Rodriguez, 360 F.3d 949, 953 (9th Cir. 2004) (quoting 18 U.S.C. §1951(a)). The statute defines robbery as follows:
the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property, or property in his custody or possession, or the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining.
18 U.S.C. § 1951(b)(1) (emphasis added).
Similarly, a person commits federal bank robbery when he, "by force and violence, or by intimidation, takes . . . any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association." 18 U.S.C. § 2113(a) (emphasis added). The offense entails a statutory maximum sentence of 20 years of imprisonment. Id.
If, however, a defendant, in committing a bank robbery, "assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device," the maximum sentence is increased to 25 years. Id. § 2113(d). This enhancement applied to the instant case, as Stain was charged with and convicted of committing federal bank robbery by "assault[ing] and put[ting] in jeopardy the life of another person by the use of dangerous weapons . . . ." ECF No. 171 at 6; see also ECF No. 329 at 1.
Stain now challenges his section 924(c) convictions under section 2255, arguing that Hobbs Act robbery and federal bank robbery can no longer be considered crimes of violence under modern authority. He first contends that the court may not apply section 924(c)'s residual clause because it is void for vagueness in light of the U.S. Supreme Court's decision in Johnson and the Ninth Circuit's decision in Dimaya. He further argues that neither federal robbery statute is a categorical match for the force clause because they may be committed (1) through the use of nominal (i.e., less-than-violent) force and (2) through reckless and thus unintentional conduct.
Stain's claim for relief is dependent on his argument that section 924(c)'s residual clause is void for vagueness. It is that premise that would allow Stain to collaterally attack his sentence under section 2255. However, this court need not reach this question because, even if the residual clause is void, this court has already held that Hobbs Act robbery and federal bank robbery both satisfy the force clause under 924(c) and are therefore crimes of violence. United States v. Mendoza, No. 2:16-CR-00324-LRH-GWF, 2017 WL 2200912 (D. Nev. May 19, 2017) (Hobbs Act robbery); United States v. Wesley, No. 3:16-CR-00024-LRH-VPC, 2017 WL 1050587 (D. Nev. Mar. 20, 2017) (federal bank robbery). And because Stain has not raised any arguments that the court did not previously address, it will apply its holdings in Mendoza ...
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